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Part II Legal Challenges, 5 European Antitrust Criminalization and the First Challenge of Due Process: A ‘Strengthening of Rights’ in Favour of the Accused?

Peter Whelan Dr

From: The Criminalization of European Cartel Enforcement: Theoretical, Legal, and Practical Challenges

Peter Whelan

From: Oxford Competition Law (http://oxcat.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 04 July 2022

Cartels — Fines for cartels — Application of EU competition rules — European Convention on Human Rights

This chapter assesses the contention that the introduction of criminal antitrust sanctions, including imprisonment, results in a ‘strengthening of rights’ in favour of the accused. The reasoning behind such contention is likely to be the following: when the imprisonment of an individual is a possible outcome of an antitrust investigation, the human rights protections concerning that individual should be at their most robust; protections which would be merely sufficient in relation to the imposition of administrative antitrust sanctions may no longer be adequate when criminal antitrust sanctions are imposed. The chapter then determines whether in practice the concept of due process obstructs a project of antitrust criminalization which respects the procedural requirements of European human rights law.

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